Breach of Government Regulatory dutyIndian Towing v. US 1955: Lighthouse light went out negligently, barge ran aground. One who undertakes to warn the public of danger and thereby induces reliance must perform his good Samaritan task in a careful manner.
Enabling torts- one party liable for negligently making it possible for another party to cause injury
Section C. Duties of Owners and Occupiers- Premises Liability. Premises Liability: Owners have duty to exercise reasonable care to those whom they invite onto their property. Business purposes (for benefit of owner). Generally social guests are licensees, lesser duty, make premises as safe as made for self. Must warn of hidden dangers, but need not eliminate. Trespasser, no express or implied permission, only duty to refrain from wanton and willful injuring (hidden traps).
Exceptions: Some states discovered trespassers get reasonable care.
Attractive Nuisance, qualified but well-recognized exception for actually foreseen child trepassers who come because of “attractive” dangerous condition maintained by owner, especially when prevented at low cost. These children owed duty of reasonable care.
30 years ago tripartite began to break down. Wholesale rejection in Rowland. Dozen states adopted, but most retain distinctions to avoid uncertainty.
Robert Addie and Sons v. Dumbreck. 1929: Haulage system to remove coal ashes from pithead. Wheel was dangerous and attractive to children. Children known to play in field and people take shortcuts through it. Warned people to stay out of fields, but knew being ignored. 4 year old died when machine starting while he was playing on it after his father told him not to. Trial held for P. Merely a trespasser, so no duty owed. Appeal Succeeds Type of visitor, Duty Implied
Invitee- Express or implied invitation by occupier, reasonable care that premises are safe. Invitee on the land for shared purpose with proprietor, joint interest. Generally a business interest. Must actively make it safe.
Licensee- with leave and license of occupier, duty not to create a trap or allow a concealed danger to exist on premises that is not apparent to the visitor but which is known or ought to be known to occupier. Social guest. The I don’t care that you’re there if more the gray area between licensee and trespass. Must inform of known hidden dangers, but you take the premises as you find them. You assume risks by being a social guest.
trespasser. no duty of reasonable care or for concealed danger. Trespass at own risk. Only liable for willful acts greater than absence of reasonable care. No intentional tort, no wanton or willful harm. There without invitation, either unknown to proprietor or with real objection.
Dunedin: Invitee, on land for purpose which is joint interest with the proprietor. Licensee is not in any way invited, has no interest in his being there, but either expressly permitted to use land or habitual knowledge of his presence, either accorded permission or shown no practical anxiety to stop further frequenting. Trespasser is uninvited, and either unknown of practically objected to.
Licensee v. Invitee: Customer actually buys something is easy. But person merely shopping or person accompanying friend or job applicant are hard. Public officials acting under authority? May focus on nature of premises instead of purpose of visit. Business subject to invitee rules. 2nd RS 332: Invitee is public invitee or business visitor. Public invitee invited to enter or remain on land as member of public for purpose of which land held open to the public. Business visitor is invited to enter or remain on land for purpose directly or indirectly connected with business dealings with the possessor of the land. Best way to figure out categories becomes less who the guest is, and more who the host is. Most states adopt that standard.
Lemon v. Busey Kans 1969: 5-year old brought to church by grandma who is PT employee. Fell from unlocked elevator. Licensee and denied recovery. Contrast with Post v. Lunney Fla 1972:
P paid $5 to tour home, tripped on rug cover and fractured hip. Trial judge: Licensee because visit not to mutual economic advantage because $ not to D. FlaSC rejected and said public invitee. Doesn’t matter whether cover placed just for the visit?
Knorpp v. Hale Tex 1998: killed while cutting down dead tree at girlfriend’s familt’s for New Years Bonsfire. Not invitee but a social guest, not expecting payment. Professional barred by assumption of risk even if classified as invitee?
Complications: Tolerated trespasser becomes licensee and child trespasser given licensee or even invitee status.
Note 1: Willful and Wanton Exception: Excelsior Wire Rope v. Callan 1930: infants’ hands crushed in haulage system, found to be trespassers, but held liable saying acted with reckless disregard for P’s welfare. Next to playground, field constantly swarming with children, played games on machinery. Owner’s employees knew kids constantly played there, so reckless disregard to start machines without checking the wire. Distinguished from Addie in that well known to them that when machine started extremely likely that children would be there and exposed to grave danger.”
Willful and Wanton Gould v. DeBeve 1964: Woman with 2-year old staying with another woman and paying part of rent against provisions of lease. Baby falls out through damaged screen tenant had frequently requested to be fixed. Statutory duty to keep screens in good shape, keep flies out. Judge adds, keep infants in. Judge upset that infant treated the same as other trespassers.
Note 2 Attractive Nuisance exception ease the rigor of common law for trespassers. Infant trespasser can recover when lured onto property by some tempting condition created and maintained by D. Case law excludes rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, and the like. Franich v. Great Northern 9th Cir. 1958.
Twist v. Winona Minn 1888 rejected AN as slippery slope. Almost anything can be AN for a youth. Makes it unsafe to own property and shifts burden for protecting children to everyone but parents.
Most courts, like Buch, follow Sioux City v. Stout 1873: D omitted ordinary care of reasonable men, so jury can find for P.
Attractive Nuisance- 2nd RS 339 has enormous influence: Artificial conditions highly dangerous to trespassing children. Possessor of land liable for physical harm to children trespassers cause by an artificial condition if
Possessor knows or has reason to know children are likely to trespass there; and
The possessor knows or has reason to know of the condition and realizes or should realize will involve unreasonable risk of death or serious bodily injury to such children; and
The children because oftheir youth do not discover the conditionor realize the risk; and
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to the children involved; and
The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
RS retreats from stout, 1. limited to artificial conditions on land, most cases hold does not apply to natural conditions. In Maalouf v. Swiss Confederation DDC 2002, 12 year old sledded on embassy property and hit guide wire propping up a tree. Embassy allowed sledding. Judge allowed to jury: The attraction need not be artificial, but the nuisance must be. Attracted by natural hill, nuisance was artificial guidewire.
Knows or has reason to know, but No duty to investigate the land to determine whether trespassing children are present.
Assumption of risk in clause c bars many claims. Holland v. Baltimore RR DC 1981: D JNOV over 9-year old P injured while jumping trains. Danger obvious to child his age. Merrill v. Central Maine Power Me 1993: 9 year old climbed fence surrounding electrical substation and badly burned while trying to cook eel against a live wire.
More routine settings: Carmona v. Hagerman Irrigation NM 1998: Reversed summary judgment to D when 2-year old drowned in canal. Although virtually impossible to make canal inaccessible, genuine issues of fact precluded holding that irrigation ditches are categorically exempting from AN doctrine. Kessler v. Mortenson UT 2000, court let jury find AN with 6-year old at residential construction site so that homebuilders will minimize or eliminate danger to trespassing children. Bennet v. Stanley Ohio 2001: swimming pool left unused for three years, filled with 6 feet of rainwater and covered with algae was AN to 5-year old.
Rowland v. Christian Cal 1968: Invited Rowland to apartment, faucet handle broke while he was using it, severing nerves and tendons in right hand. D knew cracked faucet and asked landlord to repair, but did not warn P Social guest defense, assumption of risk + contributory negligence. Accepted, then reversed. Rowland rejects tripartite rule, No exceptions to duty of reasonable care unless explicit. Fundamental concept: Man is liable for injuries caused by his carelessness. Proper test: whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. Status as trespasser, etc., may be relevant, but not determinative. At time, CA had not accepted 342 that property owner has duty to warn licensee of concealed dangerous condition. Standard balances:
Foreseeability of harm to P
Degree of certainty P suffered injury
Closeness of connection between D’s conduct and injury suffered
Moral blame attached to D’s conduct
Policy of preventing future harm
Burden to D and consequences of imposing duty of care
Availability, cost, and prevalence of insurance.
States generally won’t blur the line between licensee and trespassers. By 1979, only 8 states got rid of all three, by 2002 10 states. 13 other states have retained trespasser rule but gotten rid of licensee distinction. Mallet v. Pickens WVa 1999: abandoned invitee/licensee but kept for trespassers. Gladon v. Cleveland Transit Ohio 1996 found RR passenger who wondered on track exceeded scope of invitation and became licensee or trespasser. But Nelson v. Freeland NC 1998 wants to reject distinction. Jurors are generally landholders themselves.
Crystals vs. Mud: Standard brings more fleixibility, and hopefully more justice case by case. But you sacrifice clarity, increasing litigation
Standard allows more to go to the jury, because ultimate issue is whether due care was exercised, a jury question. Under the rule, which category it falls under becomes the jury question.
Rule-Clarity: Less litigation, More settlement, Judge over jury, But ambiguity in distinguishing which category.
Standard- more fair result with less rigidit, Hopefully more justice in each outcome, But case by case can be unfair as well. More discretion. Jury sympathy, Trespasser may not be the best one to respond to legal deterrence. Cost avoider
Crystals become mud because the tension creates slippage between the rules, exceptions. AN makes kid trespassers the same as invitee standard.
[Getting rid of the categories also subjects private areas of life to public judgment. Public invasion of private arena.]
[Ordinary care, necessarally means the median, meaning 50% of people are liable to public correction]
III. Strict Liability and Negligence
Arguments for and against strict liability.
Victims rights
Reciprocity as fairness
Economic/ policy arguments
offers more clarity because ex ante.
Get risk creators to internalize the external costs, likely to make the best cost choices.
Greater accuracy and simplicity in trials
Adminstrative cost savings (more settlement)
Activity-Level effects (less risky acitivty)
Research incentives, find more economical precautions.
More compensation and loss distribution.
Traditional Strict liability- damage caused by ultrahazardous activities, initially uses of the land. Abnormally dangerous. Began with animals and Rylands v. fletcher. Degree of danger poses and how common the danger. Activity level and additional research work best on injurer. If really common, injurer and victim both knowledgeable about the danger.
Current State: Negligence is the general rule, and some strict liability pockets definitely exist, and in some of the most contentious cases. Products liability, fire, nuisance, animal escape, master/servant liability. More modern, blasting, manufacturing defect product liability, etc.
Brown v. Kendall ends Case-Trespass Distinction in Favor of Negligence Standard: Dogfighting owners, D accidentally hit P with stick in eye while breaking up dogs. Sued in trespass, MA court. P said only extraordinary care was defense (utterly without fault). Neither trespass nor case unless intentional or negligent action. P must prove intent to injure or negligence for either one. Standard is always ordinary or reasonable care even if sometimes reasonable to exercise extraordinary care. Substantial change in the law in favor of rugged individualism and industrial development.
1850: gets rid of trespass altogether, making everything case. Judge Shaw is a major justice. Applies negligence rule to everything. Whether in Case or trespass, must always prove negligence.
Pg 124 defines negligence: ordinary care varies with circumstances, the facts (standard). It means the care and degree of care that prudent and cautious men would employ as required by the exigencies of the case, such to avoid danger.
Not was that D should’ve used, objective standard of what prudent (ordinary) men would have done.
Pg 125: Defines inevitable accident. Could not avoid by kind and degree of care necessary to the exigency. Excuse is no negligence.
Burden of proof is imposed on the plaintiff.
Getting rid of strict liability helps business protect itself from lawsuits. (Horowitz). Assumes strict liability was substantial. Subsidy thesis.
Rabin: Direct harm was so narrow, and case was more contractual (contract or statute) where tort wants to create baseline duty for everyone. Case was also narrow because of the contractual limitations. Getting rid of distinctions created a large common law duty, an expansion of liability to compensate victims.
Case was expanding broader duty to avoid negligence, and path was limited by this move. Strict liability might have been broadened without it, and negligence would also have increased.
Comparative Negligence Rule: if you can show that P contributed in any substantial degree negligently to the harm, complete bar to recovery.
Fletcher v. Rylands Eng 1865: D’s reservoir leaked without his fault, flooding P’s mine. Water would not have escaped from D’s reservoir if the coal had not been mined out of the land without D’s knowing it.
Frames not as negligence, but whether D can be liable without negligence.RULE: the knowledge or ignorance of the damage done is immaterial. The burden of proof for this is not on P. There need be no trespass, nuisance or negligence. Though the act may be lawful, the consequences are wrong. Causation of damage should be sufficient to maintain the action. (Minority)
Martin: No trespass. Rule: To constitute trespass the act doing the damage must be immediate, and if the damage be mediate or consequential it is not a trespass. There was no direct harm from action of building the reservoir. Partial filling of reservoir caused consequential collapse into D’s mines, causing a consequential water flow into P’s mines. No Strict liability at trial.
Fletcher v. Rylands 1866: Plaintiff bears risk unless proves damage was consequence of default for which D is responsible. There is a duty if one brings something onto one’s property that would do damage if let loose, to keep it safe. But is it strict liability (at his peril) or all reasonable and prudent precautions. Blackburn says RULE is keep at his peril (strict liability), so prima facie answerable for naturally foreseeable damages. May excuse if P’s fault, or act of God. Because D brought something onto land not naturally there that posed a potential danger.
Cattle owner must keep cattle at his own peril, same with tame beasts for grass they eat and walk on, but not for injury to people because horses generally don’t kick. If owner knows beast has vicious propensity to attack man, answerable for attacks. [Water tends to fall towards earth- natural consequence]
Personal property by collision does require negligence, as do many others. Distinguishable: Traffic inherently risky, travelers assume risk. In this case, reservoir owner is the best cost avoider, as P did nothing to cause the problem and couldn’t have avoided it, did nothing to assume risk, and P can’t control it.
Reasonable and just that neighbor who creates potential for a harm not naturally there should be responsible for the damages.
Rylands v. Fletcher 1868:Cairns: If water flowed into neighbors mine by any ordinary use of the land, no liability. RULE: If D uses land for non-natural use, like introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, and in consequence the water escaped, strict liability.
D’s activity was in building a mill and diverting water. D’s activity was digging coal. Neither activity is a natural use. Problem of bilateral harm: carriages accident. Whoever sues first wins when mutual causers and strict liability. If all based on causation, anytime both parties engaged in the same activity, bilateral harm problem. Comparing the activities, and calling one non-natural, meaning the + factor, the one that justifies at your peril.
Note 1: Case one argues about forms of action, immediate or consequential. Blackburn sidestepped by treating as consequential and imposing strict liability. Holmes: this assigns risks to best cost avoider.
Note 2 Scope, personal injury or just property? Transco v. Stockport Council: Nuisance cannot be brought if events complained about all take place solely on land of a single occupier. Must be escape from one tenement to another. Claim cannot include claim for death or personal injury, since does not relate to right in or enjoyment of land. But Blackburn may have given recovery for death by the flood.
Note 4 Non-natural use and acts of third parties:
Non-unreasonable/inappropriate. Adopted by Rickards v. Lothian 1913. someone stuffed drain and turned on faucet after D closed shop. P sued for damage to good. Held for D, Rylands scope limited to unreasonable or irregular. Water in house is reasonable and perhaps necessary to town life.Unreasonable for law to impose strict liability for reasonable and almost necessary actions.
Non-Natural use in Cambridge Water v. Eastern Counties 1994: Toxic PCE’s escaped from tannery, worked through aquifier to borehole. Common in tanning industry does not within Ryland’s exception. But D prevailed on appeal. A reasonable supervisor would not have foreseen before 1976 that small quantity spillage would cause environmental hazard. Reasonable foresight in nuisance and negligence required in England, overpowers Ryland’s rule.
Reception of Ryland’s in American was frosty at first Brown and Losee reject strict liability and Ryland: Ryland is an extension of primitive law, no longer appropriate for modern life. The rights of civilization in rising above barbarism are just as sacred as the rights of individuals. Political economy of moving beyond the barbarism
Brown v. Collins NH 1873: Trespass, horse carriage broke stone post with street lamp after RR engine scared horses, owner used ordinary care and skill. No actual fault by owner. Ryland applies to all things brought onto land that can cause damage if escaped. Build fire at own peril. But US requires negligence for fire spreading. Losee v. Buchanan. And everything brought onto land is capable of escaping without fault of owner. And most things can cause damage by escaping. Must mean any disturbance of the natural order. Arbitrary. Cairn’s non-natural use, if that includes reasonable use, is not precendent. Discourages civilization and penalizes effort. Extension of Rylands v is contrary to cases and general principles of common law. D wins.
P sued for damages from D’s boiler exploding while operated with due care. Denied because we give up natural rights to be members of civilized society. We must have factories, etc. Demanded by mankind, and lay the basis of civilization. Not responsible for accidental or unavoidable harm if not negligent. Compensation is the general good of the improvements, and the right to improve one’s own land.
Turner v. Big Lake Oil TX 1936: Rejected Rylands v. Fletcher because storage of water in cisterns is a natural use of the land in TX.
MA adopts in 1875, but many others reject it.PA in coal mining D case, court says we need coal mining, in 1886 rejects Ryland in favor of civilization and advancement. 3 years later, Johnston flood in Pa from reservoir breach. Recreational reservoir. Club did not retain embankment reservoir. Destroyed Johnston, flooded Washington DC.
Adoption of Ryland Increases dramatically: Other floods in the West before give short increase, 16 states adopt after Rylands. Then levels off. Robb v. Carnegie Bros, Pa 1891.
After the flood, no longer special privilege from collective justice. Move towards corrective justice, matching up two private parties.
Strict liability only reemerged in mid 20th century because liberal progressive law and economics could justify it.
After Ryland, explicit defense of fault rule. Not just implicit subsidy, but explicit subsidy to economic growth that would spread the wealth.
After Ryland, strict liability spread because of response to Johnston flood justified by moral terms. No right to public benefits, no right to damage others, must compensate for damage
Judicial Elections: States with judicial election (mid 19th century) adopted Strict liability faster. Longer terms made judges more responsive. Shorter terms, must raise more money. Easier to raise money from rich people, who fight strict liability. Running for elections changes mentality, Elected judges realize public opinion is valid. Elected judge states have higher tort awards.
1984: only 7 states reject Rylands, and 30 accept. Mass applied Rylands in 1975.
